R. v. Jenkins (E.) et al., (1996) 90 O.A.C. 263 (CA)

• Judge: Dubin, C.J.O., Brooke, Carthy, Osborne and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 15, 1996
• Jurisdiction: Ontario
• Citations: (1996), 90 O.A.C. 263 (CA)

R. v. Jenkins (E.) (1996), 90 O.A.C. 263 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Eric Jenkins and Everett Jenkins (appellants)

(C14995, C14996)

Indexed As: R. v. Jenkins (E.) et al.

Ontario Court of Appeal

Dubin, C.J.O., Brooke, Carthy, Osborne and Laskin, JJ.A.

May 15, 1996.

Summary:

The accused, twin brothers Eric and Everett, were charged with first degree murder, following the victim's death during a fight. During the fight, Eric struck the victim on the head with a hammer and Everett stabbed the victim six times with a knife. Two of the knife wounds were fatal. Everett was convicted of second degree murder and Eric was convicted of man­slaughter. The accused appealed their con­victions, arguing: (1) that the jury was not properly instructed on self-defence; (2) that the judge erroneously used the phrase "moral certainty" to explain proof beyond reason­able doubt; (3) that the trial judge erred in in­structing the jury that they could consider the accused's postfight conduct in determin­ing the self-defence issue and failed to instruct the jury that the reasonable doubt standard applied to evidence of conscious­ness of guilt; and (4) that the judge should have instructed the jury that certain prior inconsistent statements by the Crown's main witness were admissible for their truth, even though she did not adopt the statements in her evidence at trial.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 83

Stare decisis - Authority of judicial deci­sions - Prior decisions of same court - Court of Appeal - The Ontario Court of Appeal stated that if the court were con­vinced that jurisprudence of the court was manifestly wrong, it would not hesitate to overrule it - See paragraph 50.

Criminal Law - Topic 239

General principles - Statutory defences - Self-defence - Brown hit Eric Jenkins over the head with a bottle - Later Eric and his twin brother Everett found Brown and a fight ensued between Everett and Brown - Eric intervened - Eric struck Brown on the head with a hammer and Everett stabbed Brown with a knife - Two of the knife wounds were fatal - Everett was convicted of second degree murder and Eric of manslaughter - The accused appealed arguing that the trial judge im­properly instructed the jury on self-defence - The Ontario Court of Appeal held that the jury was properly instructed -See paragraphs 18 to 47.

Criminal Law - Topic 1293

Murder - Defences - Self-defence - [See Criminal Law - Topic 239 ].

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - [See second Criminal Law - Topic 4370 ].

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - Use of phrase "moral certainty" - One accused was convicted of manslaugh­ter and a second accused was convicted of second degree murder following a homi­cide - The accused appealed their convic­tions, arguing that the trial judge should not have used the phrase "morally certain" to explain proof beyond a reasonable doubt - The Ontario Court of Appeal rejected this argument - The court traced the his­tory of the use of this phrase, noting that it was used in the court's own jurisprudence for nearly 50 years - The court com­mented that it would not hesitate to over­rule its own jurisprudence if the jurispru­dence was manifestly wrong but there was no need to overrule the previous decisions endorsing the language of moral certainty - See paragraphs 48 to 94.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - Brown hit Eric Jenkins over the head with a bottle - Later Eric and his twin brother Everett found Brown and another fight ensued wherein Eric struck Brown on the head with a hammer and Everett stabbed him with a knife - Two of the knife wounds were fatal - Everett was convicted of second degree murder and appealed, argu­ing that the trial judge erred in failing to instruct the jury that the accused could rely on s. 34(2) of the Criminal Code whether or not he provoked the assault on Brown - The Ontario Court of Appeal held that while the trial judge should have added provoca­tion to his list of distinctions between ss. 34(1) and 34(2), his failure to do so could not have misled the jury - See paragraphs 22 to 33.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - The Ontario Court of Appeal stated that "it is an error in law to expressly tell the jury that an accused who provokes an assault cannot rely on s. 34(2). Whether it is an error in law not to tell the jury that even an accused who does provoke an assault can rely on s. 34(2) depends on the rest of the instructions on self-defence. If the in­structions as a whole reasonably could have misled the jury into believing that an accused who provokes an assault is deprived of the defence of self-defence under s. 34(2), then the nondirection on provocation is an error of law" - See paragraph 28.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - Brown hit Eric Jenkins over the head with a bottle - Later Eric and his twin brother Everett found Brown and another fight ensued wherein Eric struck Brown on the head with a hammer and Everett stabbed him with a knife - Two of the knife wounds were fatal - Everett was convicted of second degree murder and appealed, argu­ing that the failure by the trial judge to refer to retreat in his jury instructions on s. 34(2) of the Criminal Code amounted to misdi­rection - The Ontario Court of Appeal rejected this argument - See para­graph 34.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - Brown hit Eric Jenkins over the head with a bottle - Later Eric and his twin brother Everett found Brown and another fight ensued between Everett and Brown - Eric intervened - Eric struck Brown on the head with a hammer and Everett stabbed Brown with a knife - Two of the knife wounds were fatal - Eric appealed his manslaughter conviction arguing the trial judge did not proper­ly charge the jury respecting s. 37 of the Criminal Code respecting his involve­ment in the altercation - The Ontario Court of Appeal rejected this argument, holding that the trial judge's charge on this aspect of the case was consistent with the principles of s. 37 and with the evidence - See para­graphs 37 to 41.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - Brown hit Eric Jenkins over the head with a bottle - Later Eric and his twin brother Everett found Brown and another fight ensued between Everett and Brown - Eric intervened - Eric struck Brown on the head with a hammer and Everett stabbed Brown with a knife - Two of the knife wounds were fatal - Eric appealed his manslaughter conviction arguing the trial judge should have instructed the jury that Eric could rely on the self-defence provisions in ss. 34(1) and 34(2) of the Criminal Code - The Ontario Court of Appeal rejected this argument - See para­graphs 42, 43.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - Brown hit Eric Jenkins over the head with a bottle - Later Eric and his twin brother Everett found Brown and a fight ensued between Everett and Brown - Eric intervened - Eric struck Brown on the head with a hammer and Everett stabbed Brown with a knife - Two of the knife wounds were fatal - Eric appealed his manslaughter conviction arguing the trial judge misdirected the jury on the burden of proof - The Ontario Court of Appeal noted that one passage of the charge appeared to reverse the burden of proof of self-defence, but the remainder of the charge accurately and succinctly instructed the jury on the Crown's burden to prove beyond a reasonable doubt that the accused were not acting in self-de­fence - See paragraphs 44 to 47.

Criminal Law - Topic 4375.2

Procedure - Jury charge - Directions regarding prior inconsistent statements - Two accused appealed their criminal con­victions, arguing that the jury should have been instructed that certain prior inconsis­tent statements by the Crown's main wit­ness were admissible for their truth, even though the statements were not adopted in her trial evidence - The accused argued that they should have a new trial to deter­mine whether the witness's statements satisfy the reliability and necessity criteria in accordance with changes in the law by the Supreme Court of Canada - The On­tario Court of Appeal held that it was unnecessary to deal with these arguments where admitting the statements for their truth would not have materially advanced the accused's defence - See paragraphs 113 to 123.

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - One accused was convicted of manslaughter and a second accused was convicted of second degree murder following a fight which caused a death - The accused appealed their con­victions arguing that the trial judge erred in instructing the jury that they could con­sider the postfight conduct in deter­mining the self-defence issue - The Ontario Court of Appeal held that the judge was correct in instructing on the postfight conduct, including the ac­cused's flight and conceal­ment of evi­dence, but erred in instructing that the postfight conduct was relevant to the self-defence issue - Notwithstanding this error in the charge on consciousness of guilt, the court applied s. 686(1)(b)(iii) of the Criminal Code and held that there was no miscar­riage of justice - See para­graphs 95 to 108.

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - One accused was convicted of manslaughter and a second accused was convicted of second degree murder following a homicide - The ac­cused appealed their convictions arguing that the trial judge erred in his instructions on consciousness of guilt from postcrime behaviour because he failed to instruct the jury that the reasonable doubt standard applied to evidence of consciousness of guilt - The Ontario Court of Appeal re­jected this argument where no miscar­riage of justice resulted from the failure to use the words "reasonable doubt" - See para­graphs 109 to 112.

Criminal Law - Topic 4399.9

Procedure - Jury charge - Directions re flight and other postoffence behaviour of accused - [See both Criminal Law - Topic 4392 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See first Criminal Law - Topic 4392 ].

Criminal Law - Topic 5313.01

Evidence and witnesses - Inferences - From consciousness of guilt - [See both Criminal Law - Topic 4392 ].

Evidence - Topic 4751

Witnesses - Examination - Prior incon­sistent statements - Use of and effect of use of - [See Criminal Law - Topic 4375.2 ].

Words and Phrases

Morally certain - The Ontario Court of Appeal discussed the meaning of this phrase and propriety of using the phrase in a jury charge respecting reasonable doubt in a criminal case - See paragraphs 48 to 94.

Cases Noticed:

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 18].

R. v. McIntosh (B.B) (1993), 65 O.A.C. 199; 84 C.C.C.(3d) 473 (C.A.), refd to. [para. 26].

R. v. Stubbs (1988), 28 O.A.C. 14 (C.A.), refd to. [para. 26].

R. v. Cameron (H.) (1995), 80 O.A.C. 58; 22 O.R.(3d) 65 (C.A.), appld. [paras. 29, 116].

R. v. Nelson (1992), 54 O.A.C. 14; 71 C.C.C.(3d) 449 (C.A.), appld. [para. 30].

R. v. Elkins (M.R.) (1995), 86 O.A.C. 125; 26 O.R.(3d) 161 (C.A.), appld. [para. 30].

R. v. Santeramo (1976), 32 C.C.C.(2d) 35 (Ont. C.A.), refd to. [para. 50].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161; 45 C.C.C.(3d) 1, refd to. [para. 51].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161; [1991] 2 W.W.R. 385; 62 C.C.C.(3d) 193; 1 C.R.R.(2d) 1; 2 C.R.(4th) 1, refd to. [para. 51].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 54].

United States v. Dewolf (1982), 696 F.2d 1 (1st Cir. Ct.), refd to. [para. 56].

R. v. Tyhurst (J.S.) (1992), 21 B.C.A.C. 218; 37 W.A.C. 218; 79 C.C.C.(3d) 238 (C.A.), refd to. [para. 57].

R. v. Brydon (J.L.) (1995), 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81; 101 C.C.C.(3d) 481 (S.C.C.), refd to. [paras. 58, 82].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 59].

Commonwealth v. Webster (1850), 59 Mass. (5 Cush.) 320, refd to. [para. 63].

People v. Strong (1866), 30 Cal. 151 (Cal. Sup. Ct.), refd to. [para. 64].

R. v. Sears (1947), 90 C.C.C. 159 (Ont. C.A.), refd to. [para. 66].

R. v. Burdick (1975), 27 C.C.C.(2d) 497 (Ont. C.A.), refd to. [para. 67].

R. v. Roloson (1978), 42 C.C.C.(2d) 262 (Ont. C.A.), refd to. [para. 67].

R. v. Hogan (1982), 2 C.C.C.(3d) 557 (Ont. C.A.), refd to. [para. 67].

R. v. Gordon (1983), 4 C.C.C.(3d) 492 (Ont. C.A.), refd to. [para. 67].

Hopt v. Utah (1887), 120 U.S. 430 (U.S. Sup. Ct.), refd to. [para. 71].

Commonwealth v. Kloiber (1954), 106 A.2d 820 (Penn. Sup. Ct.), refd to. [para. 71].

People v. Brigham (1979), 599 P.2d 100 (Cal. Sup. Ct.), refd to. [para. 72].

Christian, S., Re (1994), 872 P.2d 574 (Cal. Sup. Ct.), refd to. [para. 72].

Lanigan v. Maloney (1988), 853 F.2d 40 (1st Cir. Ct.), refd to. [para. 73].

Cage v. Louisiana (1990), 111 S.Ct. 328, refd to. [para. 73].

Victor v. Nebraska; Sandoval v. California (1994), 114 S.Ct. 1239 (U.S. Sup. Ct.), refd to. [para. 74].

Adams v. Aiken (1994), 41 F.3d 175 (4th Cir. Ct.), refd to. [para. 79].

United States v. Jacobs (1995), 44 F.3d 1219 (3rd Cir. Ct.), refd to. [para. 79].

United States v. Neal (1994), 36 F.3d 1190 (1st Cir. Ct.), refd to. [para. 79].

People v. Taimanglo (1995), 1995 U.S. App. LEXIS 4098 (5th Cir. Ct.), refd to. [para. 79].

R. v. Kritz, [1950] 1 K.B. 82 (C.A.), refd to. [para. 80].

R. v. Onufrejczyk, [1955] 1 All E.R. 247 (C.A.), refd to. [para. 80].

Walters (Henry) v. R., [1969] 2 A.C. 26 (P.C.), refd to. [para. 80].

Brown v. R. (1913), 17 C.L.R. 570 (Aust.), refd to. [para. 81].

Thomas v. R. (1960), 102 C.L.R. 584 (Aust.), refd to. [para. 81].

R. v. Conley (1982), 30 S.A.S.R. 226 (S.C. in banco), refd to. [para. 81].

R. v. Brydon (J.L.) (1995), 55 B.C.A.C. 6; 90 W.A.C. 6; 95 C.C.C.(3d) 509 (C.A.), revd. (1995) 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81; 101 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 82].

R. v. Ford (1991), 12 W.C.B.(2d) 576 (C.A.), refd to. [para. 89].

R. v. Livingston (1985), 39 Sask.R. 45; 46 C.R.(3d) 50 (C.A.), refd to. [para. 92].

R. v. Minhas (1986), 16 O.A.C. 42; 29 C.C.C.(3d) 193 (C.A.), refd to. [para. 96].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 100].

R. v. Wiltse et al. (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 101].

R. v. Marinaro (G.) (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), revd. (1996) 197 N.R. 21 (S.C.C.), refd to. [para. 102].

R. v. Murray (E.E.) (1994), 73 O.A.C. 321; 93 C.C.C.(3d) 70 (C.A.), refd to. [para. 102].

R. v. Bob (1990), 40 O.A.C. 184; 78 C.R.(3d) 102 (C.A.), refd to. [para. 103].

R. v. Court (G.R.) and Monaghan (P.D.) (1995), 81 O.A.C. 11; 99 C.C.C.(3d) 237 (C.A.), refd to. [para. 109].

R. v. Poirier (M.R.) (1995), 56 B.C.A.C. 131; 92 W.A.C. 131 (C.A.), refd to. [para. 109].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 110].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 115].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 30 C.R.(4th) 293 (C.A.), refd to. [para. 116].

R. v. R.R. - see R. v. Rollocks (R.).

R. v. Brown (A.R.R.) (1992), 127 A.R. 89; 73 C.C.C.(3d) 481 (C.A.), refd to. [para. 118].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 22 C.R.(4th) 145, refd to. [para. 118].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), refd to. [para. 119].

Statutes Noticed:

California Penal Code (1985), Ann. § 1096 [para. 64].

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 54].

Criminal Code, R.S.C. 1985, c. C-46, sect. 34(1), sect. 34(2), sect. 35, sect. 37 [para. 18 et seq.]; sect. 686(1)(b)(iii) [para. 107].

Authors and Works Noticed:

Los Angeles Superior Court Committee on Standard Jury Instructions Report: Alter­native Definitions of Reasonable Doubt, Daily Journal Report (May 22, 1987), p. 14 [para. 72].

New Shorter Oxford Dictionary [para. 91].

Shapiro, Barbara, To A Moral Certainty: Theories of Knowledge and Anglo-American Juries: 1600-1850 (1986), 38 Hastings L.J. 153, generally [para. 60]; pp. 154 [para. 65]; 171 [para. 62]; 193 [para. 61].

Stuart, Don, Canadian Criminal Law: A Treatise (3rd Ed. 1995), pp. 440 to 445 [para. 18].

Underwood, Barbara D., The Thumb on the Scales of Justice: Burdens of Persua­sion in Criminal Cases (1977), 86 Yale L.J. 1299, p. 1306 [para. 55].

Wigmore on Evidence (Chadbourn Rev.), p. 405 [para. 56].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 43 [para. 56].

Counsel:

James Lockyer and David M. Tanovich, for the appellants;

W. Graeme Cameron, for the Crown, re­spondent.

This appeal was heard before Dubin, C.J.O., Brooke, Carthy, Osborne and Laskin, JJ.A., of the Ontario Court of Appeal. The following decision was released by Laskin, J.A., for the court, on May 15, 1996.